OPINION:
It seems like an easy call.
States are legalizing marijuana use — recreationally in eight; medicinally under at least some circumstances in 46 — but possession and sale of the drug remain illegal at the federal level.
Those who have opened legitimate businesses in those states to meet the new legal demand have a hard time accessing basic services, such as banking, because those businesses don’t want to get in trouble for assisting in the production of what are still illegal drugs at the federal level.
Lawmakers of both parties and in both houses of Congress have proposed legislation that would address this. The STATES Act — short for the Strengthening the Tenth Amendment Through Entrusting States Act — would amend the Controlled Substances Act to provide that federal laws related to marijuana activities no longer apply to those who meet a few criteria.
It would make clear transactions that followed the criteria would not constitute drug trafficking or result in the merchants receiving proceeds of an unlawful transaction.
The public wants it. Polls show 60 percent of adults want marijuana legalized for recreational abuse. It costs $50 billion per year to enforce laws voters clearly don’t want. And they’re not nabbing “kingpins;” they’re arresting upstanding, responsible neighbors — 84 percent of those arrested are for simple possession.
But it’s not that easy.
First, what is the limiting principle?
Bob Barr, the former congressman from Georgia and Libertarian Party presidential candidate who said he has gone from opposing pot legalization as a prosecutor to favoring it now, says “common sense tells us not that not all illegal drugs are alike ” that heroin is more dangerous and addictive, LSD more powerful, date rape drugs more transparently evil.
But what would stop a state where common sense often does not prevail, such as California — which already flouts federal law on immigration with its sanctuary city (and state) statutes — from trying the same with cocaine, heroin or fentanyl?
Second, why is this the right time to give what the federal Good Housekeeping Seal of Approval to states that have thumbed their noses at federal law and made pot legal? It’s not like it’s been an unalloyed policy success.
Since 2012, when it legalized marijuana for recreational use, Colorado has seen sharp increases in marijuana-related traffic deaths, poison control calls and emergency room visits. Its black market has increased; not decreased, and more African-American and Latino youths are being arrested for drugs now than before legalization.
Marijuana use among teens is the highest in the nation and 74 percent higher than the national average. College students — who are offered discounts with student IDs at some marijuana stores — are earning worse grades and failing at a higher rate.
The promised windfall of tax dollars also has largely failed to materialize as, even five years in, marijuana accounts for only 1.18 percent of state revenue.
Then why do it?
Because Mr. Barr has a point — marijuana is not the same as cocaine or heroin or meth. About 40 million Americans have used some marijuana in the last year, and nearly 100 million have used it at some point.
Enforcement does seem discriminatory. Blacks and Latinos account for about 12 percent of the population each, but they account for 57 percent of those arrested for using and selling drugs.
The patchwork and contradictory laws undermine public trust in the system, and the peoples’ representatives in Congress have spoken in favor of not harassing the states that have legalized weed — in most cases through referendum.
Federal law enforcement, under anti-marijuana Attorney General Jeff Sessions, has not moved already against growers and sellers in states that have legalized marijuana solely because Congress passes a law every year saying no federal funds can be used to prosecute them. The people operating in this legal business deserve more certainty than a year-to-year reprieve.
But the clincher is the notion that voters and their elected representatives should determine the policies they live under. President Trump disagrees with his attorney general on this. He said numerous times during his campaign that he thought states should decide the issue of whether medicinal use of marijuana should be allowed, not Washington.
He has further said using limited federal resources to prosecute people for marijuana makes little sense and makes normal people into criminals. His general attitude is states should be able to make laws that don’t affect other states.
And, according the FBI, changes in pot policing in one state do not bring significant changes to pot policing in neighboring states.
• Brian McNicoll is a conservative columnist and freelance writer based in Alexandria, Va. He is a former senior writer for the Heritage Foundation and former director of communications for the House Committee on Oversight and Government Reform.
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